District Plan Hauraki Gulf Islands Section - Proposed 2006

(Notified version 2006)

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Summary report on submissions to the Auckland City District Plan: Hauraki Gulf Islands Section - Proposed 2006

1.0 Introduction

For ease of use and understanding, the heritage submissions and further submissions have been divided into the seven disciplines as well as an overall report which addresses submissions that broadly deal with the heritage section, or address more than one discipline.

This report considers submissions and further submissions ('submissions') that were received by the council in relation to part 7.10, and the associated appendices, of the Auckland City District Plan: Hauraki Gulf Islands Section - Proposed 2006 ('the Plan'). The Plan was publicly notified on 18 September 2006. The closing date for lodging submissions was 11 December 2006. The submissions and summary of decisions requested were publicly notified for further submission on 29 April 2007. The closing date for lodging further submissions was 28 May 2007.

This report has been prepared under section 42A of the Resource Management Act 1991 ('the RMA'), to assist the hearings panel to consider the submissions on the conservation area. This report discusses the submissions (grouped by subject matter or individually) and includes recommendations from the planner who prepared this report. The recommendations identify whether each submission should be accepted or rejected (in full or in part) and what amendments (if any) should be made to the Plan to address matters raised in submissions. Further submissions are not specifically addressed but are dealt with in conjunction with the submissions to which they relate.

The recommendations contained in this report are not decisions of the council. The council will issue its decisions following consideration of the submissions, further submissions, any supporting evidence presented at the hearing, and this report. The council's decisions will be released after all the hearings to the Plan have been completed. 

2.0 Statutory framework

This section of the report briefly sets out the statutory framework within which the council must consider the submissions. In preparing this report the submissions and, in particular, the decisions requested in the submissions, have been considered in light of the relevant statutory matters. These were summarised by the Environment Court in Eldamos Investments Limited v Gisborne District Council W 047/05 where the court set out the following measures for evaluating objectives, policies, rules and other methods in district plans:

1. The objectives of the Plan are to be evaluated by the extent to which they:
   1. Are the most appropriate way to achieve the purpose of the RMA (s32(3)(a)); and
   2. Assist the council to carry out its functions in order to achieve the purpose of the RMA (s72); and
   3. Are in accordance with the provisions of part 2 of the RMA (s74(1).
2. The policies, rules, or other methods in the Plan are to be evaluated by the extent to which they:
   1. Are the most appropriate way to achieve the objectives of the Plan (s32(3)(b)); and
   2. Assist the council to carry out its functions in order to achieve the purpose of the RMA (s72); and
   3. Are in accordance with the provisions of part 2 of the RMA (s74(1)); and
   4. (If a rule) achieve the objectives and policies of the Plan (s76(1)(b)).

The purpose of the RMA is "to promote the sustainable management of natural and physical resources", and "sustainable management" is defined in section 5(2) as meaning:

"... managing the use, development, and protection of natural and physical resources in a way, or at a rate, which enables people and communities to provide for their social, economic, and cultural wellbeing and for their health and safety while—

(a) Sustaining the potential of natural and physical resources (excluding minerals) to meet the reasonably foreseeable needs of future generations; and

(b) Safeguarding the life-supporting capacity of air, water, soil, and ecosystems; and

(c) Avoiding, remedying, or mitigating any adverse effects of activities on the environment."

Along with section 5, part 2 of the RMA includes sections 6 (matters of national importance), 7 (other matters) and 8 (Treaty of Waitangi), which set out a range of matters that the council needs to recognise and provide for in achieving the purpose of the RMA. Those matters are also relevant when considering submissions.

The Plan must assist the council to carry out its functions under section 31 of the RMA. These functions are:

"(a) The establishment, implementation, and review of objectives, policies, and methods to achieve integrated management of the effects of the use, development, or protection of land and associated natural and physical resources of the district:

(b) the control of any actual or potential effects of the use, development, or protection of land, including for the purpose of—

(i) the avoidance or mitigation of natural hazards; and

(ii) the prevention or mitigation of any adverse effects of the storage, use, disposal, or transportation of hazardous substances; and

(iia) the prevention or mitigation of any adverse effects of the development, subdivision, or use of contaminated land:

(iii) the maintenance of indigenous biological diversity:

(c) ...

(d) The control of the emission of noise and the mitigation of the effects of noise:

(e) The control of any actual or potential effects of activities in relation to the surface of water in rivers and lakes."

In addition to the matters listed above from the Eldamos decision:

1. The Plan must "give effect to" any national policy statement and any New Zealand coastal policy statement (s75(3)(a) and (b)).
2. The Plan must "give effect to" the regional policy statement (made operative after 10 August 2005) (s75(3)(c)).
3. The Plan must be "not inconsistent with" any regional plan (s75(4)).
4. The council must ensure that that the Plan does not conflict with sections 7 and 8 of the Hauraki Gulf Marine Park Act 2000 ("the HGMPA").  Section 10 of the HGMPA requires that sections 7 and 8 of that Act be treated as a New Zealand coastal policy statement under the RMA.

3.0 Background

This section of the report sets out background information about the topic under consideration. It identifies how the Plan deals with conservation areas that fall within Part 7.10 and appendices 1c, 3 and 4 of the Plan. The intention of conservation areas is to maintain the unique character of the whole area against development, demolition or other works that are not in sympathy with the era, style or character to be conserved. Currently, only one conservation area is applied in the HGI and this applies to Rocky Bay (Omiha), on Waiheke island.  

4.0 Analysis of submissions

4.1 Introduction

This section of the report discusses the decisions requested in submissions about part 7.10, conservation areas, and appendices 1c, 3 and 4. The submissions are addressed under subject headings. While the relevant statutory matters (identified in section 2.0 of this report) will not necessarily be referred to directly, the discussion and recommendations have given appropriate consideration to these and any other relevant matters.

A list of the submissions which raise issues about Part 7 - Heritage together with the related further submissions is contained in appendix 1. Appendix 2 contains the summary of the decisions requested by the submissions considered in this report. Any amendments to the Plan recommended in response to submissions are identified in this section of the report and are further detailed in appendix 3.

The list of submissions contained in appendix 1 may include some submissions and further submissions which were received 'late', ie they were received after the closing date for lodging submissions (11 December 2006) or further submissions (28 May 2007).  All late submissions were considered by the hearing panel at the start of the hearing process and the panel has already waived the failure to comply with the time limit for any late submissions or further submissions listed in appendix 1. This has been done in accordance with sections 37 and 37A of the RMA.

4.2 Submissions about clause 7.10 - Conservation areas

Submissions dealt with in this section: 154/2, 340/1, 1169/1, 1228/7-10, 2801/1, 2802/1, 3667/1, 3815/1, 2191/2, 2192/1, 2641/52, 2091/9, 7/1, 50/1, 51/1, 1107/2, 941/40, 2581/1, 1169/2, 1228/8, 1235/1, 1243/58, 2008/2, 3, 2191/3, 2192/2, 3554/1, 3722/1, 501/1, 1235/2, 2008/4, 2191/4, 2191/5, 6 & 7 and 2192/3-6.

4.2.1 Decisions requested

Various submissions seek that the conservation area controls that apply to Rocky Bay are removed from the Plan. Others request that they are modified, or retained. An outline of the of the relief sought is provided as follows:

• That should the proposed conservation area proceed for Rocky Bay, that residents who wish to carry out work on their properties that would require council consent can obtain free professional advice from council in relation to the proposed work and that any consent fees will be remitted.
• Reject the entire Heritage controls (at clause 7.10) and revert to the existing operative plan
• Retain clause 7.10.2
• That the overall language and style of the proposed changes to the Plan are amended to take account of (a) the tension between private property rights and the desire to preserve the distinctive character and community of Rocky Bay, its built and general environs. (b) a widespread perception that succeeding bureaucracies could over regulate and destroy the community identity and independence.
• Delete the provision for the Omiha (Rocky Bay) conservation area in clause 7.10.
• Amend clause 7.10.2 (2) to read "By ensuring that land use and development within the conservation areas does not significantly detract from the values for which it was protected".
• The council must consider that amendments can be made to properties, provided that these changes are in keeping with the spirit of the conservation area, and are not overly burdensome on the owner who may be attempting to make alterations to their property in good faith. Particularly concerned that vegetation maintenance work appears to be severely restricted, making for unhealthy gardens, and dangerous trees (eg through powerlines, over roof lines etc).
• Remove clause 7.10.4.1 restricting pruning to hand tools.
• Clause 7.10.4.1 be amended by adding item (5) to read (or words to like effect):
• "5. The actions of any person in carrying out work which is authorised by statute or regulations (including the Electricity Act 1992 and the Electricity (Hazards from Trees) Regulations 2003), provided that the person concerned shall notify the Council in writing no later than 7 days prior to the work commencing as to the reasons for the work and shall undertake all such work in accordance with good arboricultural practice".
• That clear guidelines be laid down so that should the need arise for refurbishment, maintenance or rebuilding of the hall, store, flagpole and boatsheds from Pohutukawa Avenue to "Goldie Point" at Rocky Bay such work can be undertaken provided it is in keeping with the character of the area.

4.2.2 Planner's analysis and recommendations

Brief explanation of conservation areas

The intention of a conservation area is to maintain the unique character of an area against development, demolition or other works that are not in sympathy with the era, style or character to be conserved. Clause 7.10 outlines the issues, objective, policies, rules and matters of discretion. The rules generally require restricted discretionary activity consent for modification or removal of existing buildings, structures, vegetation or features and for constructing new buildings within a conservation area. There are a variety of matters of discretion which generally reference the character statement for the conservation area; the ICOMOS New Zealand charter; the affect on the streetscape appearance and character of the area.  As notified, the Plan only defines one conservation area, at Rocky Bay, which is defined in appendix 1c - schedule of conservation areas - inner islands. Appendix 2c contains the schedule of conservation areas - outer islands, which at this stage does not contain any conservation area. Appendix 3 contains the character statements for the conservation areas, as there is only one conservation area in the Plan as notified, it only contains the character statement for Rocky Bay. It provides a brief outline of how Rocky Bay developed and its attributes which contribute to an overall character. Appendix 4.3 contains the criteria for scheduling conservation areas. These are as follows:

A conservation area must be an identified, physical, cultural or social entity, even though it may be composed of a wide variety of features. The interrelationship of its features must:

1. convey a visual sense of the overall heritage environment
2. be an arrangement of historically or functionally related sites
3. be substantially unchanged since the period of significance
4. demonstrate that the majority of the components that make up the conservation area's character are substantially intact.

2. A conservation area can also be composed of two or more definable significant areas separated by non-significant areas. A discontinuous conservation area is characterised by:

1. elements which are spatially discrete
2. spaces between the elements are not related to the significance of the Hauraki Gulf
3. visual continuity is not a factor in the significance of the conservation area.

The Rocky Bay conservation was assessed against these criteria and scheduled in the Plan (council ref: 15-10). While clause 7.10 is generic in the sense that it could be applied to any area that meets the conservation area criteria, as noted above, currently there is only one conservation area, Rocky Bay. This is because at the time of notification no other areas were assessed in sufficient detail to be included in the Plan as conservation areas. Therefore, the majority of the submissions address clause 7.10 as it relates to the Rocky Bay conservation area. As outlined in sections 4.2.1, 4.3.1 and 4.4.1 of this report the submissions seek a variety of relief. In broad terms this is outlined below, with some of the implications of the relief sought also addressed.

•  Removal of clause 7.10 in its entirety. This would also necessitate the removal of the Rocky Bay conservation area as there would not be any provisions that applied to it. It also means that other conservation areas could not be added to the Plan in the future unless new provisions were introduced concurrently.
•  Removal of the Rocky Bay conservation area from clause 7.10. Rather than removing the Rocky Bay conservation area from clause 7.10 this would effectively mean removing it from appendix 1c map reference 15-10. Therefore clause 7.10 could remain in the Plan but currently it would not apply to a conservation area. However, this would mean that it could be applied to other areas (through a plan change or variation) that met the criteria outlined in appendix 4.
•  Removal of the Rocky Bay conservation area from clause 7.10 and insertion of additional assessment criteria relating to the built form. The provisions of the underlying Island Residential 2 land unit would require a restricted discretionary consent for any exterior additions, alterations or new buildings. Additional assessment criteria could be added specifically for the Rocky Bay area.
•  Add another conservation area to appendix 1c. As above, this would mean that clause 7.10 would remain, but not necessarily apply to Rocky Bay. Obviously it would apply to the new conservation area(s).
•  Retention or amendments to clause 7.10 and appendix 1c [1] .  This would mean that the provisions and the existing Rocky Bay conservation were retained, but perhaps in an amended form. It would also mean that the provisions (amended, or retained as notified) could potentially be applied to new conservation area(s) through a plan change or variation.  

It is noted that the conservation area is an 'overlay' which provides additional protection above the other controls in the Plan. In relation to Rocky Bay the relevant land units are recreation 1 (local parks and esplanade reserves), recreation 2 (community facilities and sports parks), commercial 3 (local shops) and island residential 2 (bush residential). There are also various scheduled items located within the conservation area as follows:

Scheduled buildings

• The Rocky Bay Store (council ref: 15-2)
• The Omiha Welfare and Recreation Society Memorial Hall (council ref: 15-3)
• The Memorial plinth and flagpole (council ref: 15-4)  

Archaeological site

• Small scale archaeological earthworks (council ref: 15-5)

Scheduled tree

• Pohutukawa tree (council ref: 15-7)

Geological site

• Pohutukawa Point chert stack (council ref: 15-1)

There are also other non scheduled archaeological sites within the conservation area.

The predominant land units are recreation 1 and island residential 2. The objectives for the island residential 2 land unit is to control residential development to a scale, intensity and appearance which is complementary to the bush clad character of the natural environment and to retain the indigenous vegetation cover. Restricted discretionary activity consent is required for the construction of new buildings and alterations and additions to existing buildings. For the recreation 1 land unit the objective is to facilitate the enjoyment of local parks for passive recreation while protecting the visual amenity and ecological value of the land unit. As with the island residential 2 land unit restricted discretionary activity consent is required for the construction of new buildings and alterations and additions to existing buildings. The standard development controls for these land units also apply, as do the earthworks and vegetation controls. Resource consent is also required to modify any of the scheduled items located within the conservation area.  Obviously the subdivision controls address subdivision.

For conservation areas the key policies seek to ensure that land use and development does not detract from the values for which it was protected. The Rocky Bay conservation areas values are outlined in the character statement. In summary, the character statement describes Rocky Bay as a rare and pristine example of a foundation settlement. It began as a Maori settlement, and remnants of that still remain. It was subdivided in the early 1920's and was originally accessed by sea. It contains some of the original buildings that contributed to the settlement, such as the store, community centre and flagpole. There is also some reasonably mature bush and geological sites. Therefore, the essential qualities of the conservation area are the centre itself with its major component items, the central bush-clad reserve and its shorelines.

Therefore there is a variety of features that contribute to an overall heritage/character value for Rocky Bay. However, it is acknowledged that these individual values are protected through the Plan provisions that sit beneath the conservation area controls. For example, subdivision controls the pattern of settlement and within the conservation area there is no subdivision potential; the vegetation controls and objectives and policies of the relevant land units protect the bush; the land unit controls require resource consent for all new buildings, and additions to existing buildings, and the scheduled items are protected through the heritage provisions. Non scheduled archaeological sites are protected by the Historic Places Act. Additionally, council owns Glen Brook reserve, which forms the bush clad backdrop to the conservation area.

Given the land unit, heritage and development controls clearly go some way toward protecting those values that are attributed to the Rocky Bay conservation area, in accordance with section 32 of the RMA it is important to consider the alternatives, benefits and costs of the provisions, as notified.

Alternatives could be to modify the existing provisions so greater direction is provided about the outcome that is being sought. This is the preferred option of council's chief heritage advisor. Another option would be to remove the existing provisions and insert some additional assessment criteria into the Island Residential 2 land unit to deal specifically with the built environment of Rocky Bay. Both of these options will require a significant amount of work and should be dealt with by way of a plan variation or change. Alternatively, the existing provisions could be removed from the Plan as they apply to Rocky Bay and the relevant land unit, development and heritage controls would apply.

On balance, given the strong degree of control the Plan already exerts through the provisions that underlie the Rocky Bay conservation area the report author considers that these provisions will effectively achieve the outcomes that are sought by the conservation area. That is, the subdivision rules will control the density of development; the island residential 2 (bush residential) controls will address the scale, form, colour and location of new buildings or additions to existing buildings to ensure they are complementary to the bush clad environment; the development controls will address the bulk and location of buildings, earthworks, vegetation modification and removal, setbacks and significant ridgelines and the other heritage controls will protect the scheduled items. The integrity of the coastline is addressed through coastal setbacks, the Auckland Regional Plan: Coastal, the New Zealand Coastal Policy Statement and the HGMPA. As the buildings, the bush, the scheduled items and the coastline are the independent parts that contribute to an overall character and these are already protected through existing controls it is considered that the Rocky Bay conservation area can be removed from the Plan.  However, it is recommended that clause 7.10 remain in the Plan so that conservation areas that meet the assessment criteria can be added in the future. Therefore, the report author recommends that those submissions that seek the Rocky Bay conservation area be removed from the Plan (as it relates to clause 7.10) are accepted and those that seek its retention, or amendments to it (as it relates to clause 7.10), are rejected.  

4.3 Submissions about appendix 1c - Schedule of conservation areas - inner islands

Submissions dealt with in this section: 2641/54, 2877/4, 2880/1, 2881/1, 2882/1, 496/1, 154/3 and 3075/2.

4.3.1 Decisions requested

• Amend appendix 1c of the Plan to include a Rangitoto baches conservation area.
• That consideration be given to scheduling Heritage areas for the bach communities of Rangitoto Wharf, Islington Bay/Gardiner's Gap and Beacons End/Mackenzie's Bay.
• To include all objects and artefacts associated with the bach communities on Rangitoto island in a protected heritage area.
• To include all objects, structures and artefacts associated with the bach community at Mackenzie Bay (Beacon End in a protected heritage area).
• To include all objects and artefacts associated with the bach communities in Islington Bay area in a protected heritage area.
• Te Aroha Avenue in Hekerua Valley, Waiheke be re-defined from an 'unformed road' to a 'conservation area'.
• Include the foreshore of, and dwellings adjacent to Arran Bay as a conservation area.
• Favours the idea of a historical village at Islington Bay, Rangitoto with all of the baches being faithfully rebuilt as true to the original and caretaken by the original family descendants wherever possible.

4.3.2 Planner's analysis and recommendations

As outlined in section 4.2.2 of this report the intention of a conservation area is to maintain the unique character of an area against development, demolition or other works that are not in sympathy with the era, style or character to be conserved. In determining whether localities are worthy of recognition and protection as conservation areas criteria are outlined in appendix 4 of the Plan. As notified, the Rocky Bay conservation area is the only one that is currently included in the Plan. However, other areas may have a conservation area applied to them in the future, should they meet the criteria. At this stage no research has been undertaken on new conservation area(s) and whether they would be suitable for inclusion in the Plan. It is therefore recommended that these submissions are rejected.

4.4 Submissions about appendix 1c - schedule of conservation areas - inner islands - map reference 15-10

Submissions dealt with in this section: 3717/1, 30/1, 1218/1, 1168/2, 58/1 & 2, 137/1, 136/1, 151/1, 154/1, 327/1, 479/1, 2089/1, 2757/1, 3722/2, 298/8, 380/8, 568/8, 586/8, 628/8, 634/8, 646/8, 673/8, 706/8, 731/8, 736/8, 748/8, 802/8, 819/8, 828/8, 837/8, 844/8, 850/8, 858/8, 871/8, 889/8, 902/8, 925/8, 928/8, 957/8, 1011/8, 1123/8, 1152/8, 1204/8, 1216/8, 1232/8, 1291/8, 1375/8, 1636/8, 1637/8, 1638/8, 1639/8, 1640/8, 1641/8, 1642/8, 1643/8, 1644/8, 1645/8, 1646/8, 1647/8, 1648/8, 1649/8, 1650/8, 1651/8, 1652/8, 1653/8, 1654/8, 1655/8, 1656/8, 1657/8, 1658/8, 1659/8, 1660/8, 1662/8, 1663/8, 2124/8, 2131/8, 2133/8, 2278/8, 2283/8, 2463/8, 2561/8, 2675/8, 2679/8, 2684/8, 2691/8, 2695/8, 2706/8, 2710/8, 2780/8, 2782/8, 2791/8, 2830/8, 2842/8, 2994/8, 3009/8, 3011/8, 3025/8, 3061/51, 3513/8, 3536/8, 3561/8, 3569/8, 3573/8, 3589/8, 3628/8, 3786/8, 3806/8, 3814/8, 3817/8, 3836/8, 3838/7, 324/1, 479/2, 486/1, 893/8, 2826/8, 893/9, 2826/9, 920/1, 944/1, 1053/1, 1107/1, 1120/1, 1169/3, 1228/1, 5 & 6, 1548/1, 1589/1, 2628/1, 3424/1, 3509/1, 3522/1, 3554/2, 3584/1, 2008/1, 2566/1 & 2, 2641/53, 2848/1, 3413/1 & 2, 3414/1, 3415/1, 3510/1, 3664/1 & 2, 3665/1, 3696/1, 3850/1 and 3081/1.

4.4.1 Decisions requested

• That the "village square" structures at Rocky Bay - the hall, the store, the flag pole and the boat sheds form the core of a character area with great coastal amenity, the fundamental nature of which warrants preservation and protection from lavish gentrification of the built environment
• Restrict the conservation area for Rocky Bay (map ref 15-10) to existing houses built in the 1920's.
• The Pohutakawa Ave boat sheds at Rocky Bay should be preserved while allowing appropriate and necessary upgrading
• It would be helpful to know where the remnants of Maori gardens and stone workings are and the significance of geological sites identified within the Rocky Bay conservation area 15-10.
• Submitter doesn't accept this section (map ref 15-10) regarding 21 Glenbrook Rd, Rocky Bay for which there is already a resource consent issue for building to be more restricted.
• Boat sheds and yacht club in Rocky Bay conservation area should have some protection and flagpole should be protected.
• Delete the Rocky Bay conservation area from Plan.
• Opposes the Rocky Bay conservation area. The Plan to be left as existing.
• The conservation area at Rocky Bay is supported in principle as a pilot but a clearer community mandate should be sought as to the residences included - not to be ridiculously extensive as is proposed, let alone extended.
• To protect the "village square" area of Rocky Bay as identified by the hall, store, flagpole and boatsheds from the end of Pohutukawa Avenue around to "Goldie Point" and the special character of the Bay whilst allowing the freedom for buildings to be maintained, renovated or re-built provided such plans reflect the character of the Bay and environs.
• The Rocky Bay conservation area should include the Flagpole, Rocky Bay Hall, Rocky Bay Store and the boatsheds.
• Supports the concept of a conservation area at Rocky Bay.
• Do not proceed with the Rocky Bay conservation area as it is an ill conceived and illogical proposal which does not comply with the criteria for scheduling conservation areas (in section 3.0 of appendix 4).
• The conservation area at Rocky Bay is supported in principle as a pilot but should not be extended without a clear community mandate to that effect.
• If the proposed Rocky Bay conservation area proceeds, alter the boundaries to include Omiha reserve.
• Opposes the plan, particularly with regard to the inclusion of Omiha Road within the Rocky Bay conservation area
• Land deemed to be heritage or historical land should be purchased by parties making such claims (with specific reference to 77 O'Brien Road, Rocky Bay).

4.4.2 Planner's analysis and recommendations

As noted above a variety of decisions were requested seeking the retention, removal or modification to appendix 1c. It is considered that this issue has effectively been canvassed in section 4.2.2 of this report.  Therefore the report author recommends that those submissions that seek the Rocky Bay conservation area be removed from the Plan are accepted and those that seek its retention, or amendments to it, are rejected.  

5.0 Conclusion

This report has considered the decisions requested in submissions lodged regarding part 7.10 and the associated appendices of the Proposed Auckland City District Plan: Hauraki Gulf Islands Section 2006.

The report recommends whether submissions should be accepted or rejected and how associated further submissions should be dealt with, and how the Plan should be modified as a result. These recommendations are made prior to the hearing of submissions and therefore without the benefit of evidence which may be presented at that time. At this stage before the hearing, it is recommended that clause 7.10 be retained but that the Rocky Bay conservation area be removed from the Plan for the reasons outlined in this report.

Appendix 1

List of submissions and further submissions

Appendix 2

Summary of decisions requested

Appendix 3

Recommended amendments to the Plan

[1] No submissions specifically address appendix 3 or appendix 4.3

Published September 2008